By Nandini Nair
(Editor’s note: The transcript has been edited for clarity.)
I hope everyone is staying safe and healthy during this difficult time. Not only are we facing a health crisis, but we are also facing an economic crisis. This has been a very difficult time for a lot of H-1B workers ,who have probably been recently terminated, or they’ve been laid off.
I’ve been getting a lot of questions from H-1B employees as to what are their options, if this has happened to them already, or it’s about to happen to them in the coming weeks.
Well, the number one thing that they can do is utilize their 60-day grace period if that’s something that’s available to them.
What is a 60-day grace period?
Well, this is a law that came into place in 2017 that allowed if an H-1B worker was laid off, or terminated it provided them a one-time per admission 60 days of grace period to do three things: 1) Utilize that time to wrap up their time in the U.S. and leave the country without accruing unlawful time in the U.S.
2) Change their status, or
3) Find another H-1B employer to file a transfer petition for them.
Now, obviously the borders are closed at this point for a lot of countries. So leaving the U.S. is something that may not be possible at this time. Maybe changing status is a better option, which would be filing a dependents application — maybe their spouse is on an H-1B and their job is much more secure and they can file an application to change status to an H4. Maybe this is the time to study, maybe you wanted to always do your MBA and maybe this is a time to go back to school.
Obviously there is entrance exams and admissions to be received by families to get from these universities, but that might be another to change to an F-1 student status.
The third thing is to try to find another H-1B employer to file a new petition for you. Of course, this is something very difficult.
A majority of the H-1B employees are saying that that’s not going to be possible to get a new job in the next 60 days. Is there any sort of extension on the 60 days?
Unfortunately, no. There are a lot of petitions out there that are trying to get the 60-day grace period to be extended by USCIS to 120 days and 180 days. But at this current time, there is no such thing. There’s no additional grace period that’s been given by USCIS, so you do need to try to utilize only that amount of time to try to find another employer if possible.
Okay, most likely that’s not going to be the case. Then the other option is trying to file a change the status to a B2 tourist visa. Why should I do that? What the purpose of that?
Well, the purpose of that is to keep you in status in the country. It is also to give you time to wrap up things in the U.S. It might also give you the time to still find another work and employer who’s willing to sponsor you for a transfer petition.
You gotta remember that the B2 application has to be received, not just filed but has to be received by USCIS, before that 60-day grace period ends.
USCIS service centers are open and they are working. So it is something you can utilize right now. This is something that you can ask for an extension of time for 90 days, or even to the maximum of six months. So this is a viable option today that I have been recommending to a lot of H-1B workers. If the other three things are not possible, which is leaving the country; changing to a dependent type of status; or an F-1 or finding another H-1B employer to sponsor.
Those currently are the easiest available options that are out there for H-1B workers. As there is more guidance and hopefully there is more understanding and more leeway given by the USCIS, I will definitely update all of you guys. Until then I look forward to speaking to you again!
(Nandini Nair is a partner at the law firm a Partner at Greenspoon Marder LLP,)